State of Tennessee v. Zantuan A. Horton ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 15, 2015
STATE OF TENNESSEE v. ZANTUAN A. HORTON
Appeal from the Circuit Court for Dickson County
Nos. 22CC-2012-CR-95 & 22CC-2012-CR-111 Suzanne Lockert-Mash, Judge
No. M2014-02541-CCA-R3-CD – Filed July 28, 2015
The defendant, Zantuan A. Horton, appeals the revocation of his probationary sentence,
claiming that the trial court erred by ordering that he serve the balance of his sentence in
confinement. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.
Dawn S. Kavanagh, Assistant District Public Defender, for the appellant, Zantuan A.
Horton.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Carey Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Originally charged, in case number 22CC-2012-CR-95 with one count each
of third offense driving on a revoked license, simple possession of marijuana, and failure
to appear in court and in case number 22CC-2012-CR-111 with two counts of the sale of
.5 grams or more of cocaine, the defendant pleaded guilty on January 17, 2014, to one
count of the sale of .5 grams or more of cocaine and one count of third offense driving on
a revoked license; the State dismissed the remaining charges. The trial court ordered the
defendant to serve eight years for the sale of .5 grams or more of cocaine and 11 months,
29 days for the third offense driving on a revoked license. The trial court ordered the
sentences to be served concurrently and on supervised probation following the service of
30 days in jail.
On May 28, 2014, the defendant’s probation officer filed a violation report
alleging that the defendant had violated the terms of his probation by being arrested for
domestic assault and possession of contraband in a penal institution. On June 27, 2014,
the State dismissed the probation violation warrant with the concurrence of the trial court,
and the defendant’s probation was transferred to community corrections placement.1
On September 24, 2014, the defendant’s probation officer filed a violation
report alleging that the defendant had violated the terms of his sentence by failing to pay
court costs; by failing to provide proof of full-time employment; and by failing to follow
the recommendations of the community corrections program. On October 14, 2014, the
defendant’s probation officer filed a second violation report, alleging that the defendant
had not reported as scheduled since September 15 and that he was considered to be an
absconder.
At the November 26, 2014 revocation hearing, Angela Hunt, the
community corrections officer supervising the defendant’s probation, testified that she
had been supervising the defendant since June 27. From June 27 until September 15, the
defendant reported once per week as instructed, but he failed to provide any verification
of employment. Pursuant to the terms of his community corrections placement, the
defendant was required to pay $50 per month in court costs, and Ms. Hunt testified that
he had failed to make any of those payments. Because the defendant was unemployed,
he was required to attend an employment skills class. The defendant was removed from
the class around September 15 because he disposed of his class workbook, exhibited a
“poor attitude,” and refused to take responsibility for his actions. Ms. Hunt explained
that the defendant “didn’t understand why he got kicked out” of the employment skills
class because “he had a job and so that’s why he threw the workbook away,” but the
defendant never provided Ms. Hunt with proof of his employment. The defendant told
Ms. Hunt that he had attempted to contact her on her cellular telephone several times
after September 15, but the defendant left no voicemail messages, and Ms. Hunt was
unaware of his attempts to reach her.
Ms. Hunt admitted that the defendant turned himself in on September 29,
two weeks after his most recent appearance with Ms. Hunt. Ms. Hunt acknowledged that
the defendant had made a total of $30 in payments on his supervision fees, which covered
1
Although the parties and the court refer to the action at issue in this case as the revocation of the
defendant’s “community corrections sentence,” the record indicates that the defendant was not, in fact,
resentenced to community corrections but that the supervision of his probationary sentence was
transferred to the community corrections program. See T.C.A. § 40-36-106(f) (“Nothing in this section
shall prevent a court from permitting an eligible defendant to participate in a community-based alternative
to incarceration as a condition of probation in conjunction with a suspended sentence, split confinement
or periodic confinement as provided in chapter 35 of this title.”).
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the months of July and August, but that he did not make a payment on the September
fees.
The defendant testified that he quit attending the employment skills class in
September because he was “getting a job at UPS” and that he was involved in job training
for two weeks starting in mid-September. The defendant conceded that he had not called
Ms. Hunt to inform her that he would be attending that job training. The defendant stated
that he had been hired by other employers but that he had been fired after the employers
learned of his criminal background, although the defendant later admitted that he had not
been employed by any establishment from June until September. The defendant testified
that he was attempting to enroll in barber college and that he intended to start his own
barber business upon finishing school.
Although his explanation was convoluted, the defendant appeared to
explain that he missed his required reporting date on September 22 because he was
working in an attempt to earn money to pay his anticipated bond, even though his
probation officer had not yet filed a probation violation report. The defendant also
offered, as a second explanation for his absence on September 22, that Ms. Hunt had
visited his house on September 19 and had informed the defendant’s mother that she had
a warrant for his arrest. The defendant admitted that he had been on probation on a
previous occasion, that he was familiar with the rules he was required to follow while on
probation, and that he had chosen to violate those rules.
Ms. Hunt testified as a rebuttal witness that, on September 2, the defendant
had informed her that he was planning to contact Marvin Turner to learn if the defendant
had been hired by UPS. On September 15, Ms. Hunt gave the defendant a verbal
warning regarding two missed employment skills classes and informed the defendant that
it was “his final chance” to secure employment. Ms. Hunt denied ever visiting the
defendant’s residence.
The trial court found that the defendant was “in willful violation” of the
terms of his probationary sentence. Although the trial court was unconcerned with the
defendant’s failure to pay court costs, the court specifically noted that it “doubt[ed]” the
defendant’s credibility on the issue of his failure to report because the defendant believed
Ms. Hunt had already filed a probation violation report. The court emphasized the
paramount importance of reporting to one’s probation officer and found that the
defendant violated the rule of reporting as instructed. In addition, the trial court found
that the defendant violated the terms of his placement by failing to attend and participate
in the employment skills class as required. The trial court ordered the defendant’s
sentence into execution, with credit for the time the defendant spent in confinement.
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The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof for
revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence. . . .” T.C.A. § 40-35-311(e)(1).
Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment
so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension.” Id. § 40-35-310.
In the present case, the defendant admitted violating the terms of his
probation. Thus, the defendant conceded an adequate basis for a finding that he had
violated the terms of his alternative sentence. See State v. Neal Levone Armour, No.
E2003-02907-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, Sept. 9, 2004)
(citations omitted). Moreover, the trial court determined that the State sufficiently
established the violations. The record supports these determinations, and, therefore,
revocation was unquestionably justified.
We hold that the trial court acted within its discretion, and we affirm the
order of revocation and the imposition of the original sentence.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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